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HomeMy WebLinkAboutPW Fee Deferral Agreement; San Rafael Airport - Recreational FacilityRECORDING REQUESTED, AND WHEN RECORDED RETURN TO: Office of the City Manager City of San Rafael 1400 Fifth Ave, San Rafael, CA 94901 AGREEMENT FOR FEE DEFERRAL (San Rafael Airport — Recreational Facility) FOR RECORDERS USE This Fee Deferral Agreement ("Agreement") is made and entered into as of Augusto26, 2020 (the "Effective Date") by and between the City of San Rafael, a California charter city (the "W'), and San Rafael Airport, LLC, a Delaware limited liability company ("SRA" or "Developer") (collectively the "Parties" to this Agreement). This Agreement is entered into and is executed under the following facts, circumstances and understandings: A. SRA is the owner of that certain real property legally described on Exhibit A attached hereto and incorporated herein by this reference, commonly known as the San Rafael Airport or the Airport, Address: 397-400 Smith Ranch Rd. (APN:155-230-10 through -16) (hereinafter the "Property.") B. On December 17, 2012 the City Council of the City of San Rafael passed Resolution 13479 approving a Master Use Permit and Environmental and Design Review (approvals UP05- 08 and ED05-15) and passed Resolution 13477 certifying the San Rafael Recreational Facility Project Final Environmental Impact Report (FEIR) (collectively, the "Approvals") for a project to construct an approximately 18,300 square foot indoor sports facility at the airport (hereinafter the "Facility.") C. The Approvals included an initial four (4) year timeframe for the project to be implemented (ED05-15 Condition 2). However, on July 13, 2016 an extension was granted by the Zoning Administrator of the City of San Rafael authorizing an extended project approval period until December 17, 2020 (UP05-08 condition #14 provides: "14. The proposed recreational facility may be constructed in phases. However, occupancy of the building with a primary sports facility tenant shall occur to inaugurate the use during the four-year period from date of approval of this extension of time, or an additional extension of time filed prior to the new project approval expiration period of December 17, 2020.") D. The FEIR included generation of traffic, estimated at 268 total AM and PM peak hour trips. Condition #56 specified the traffic mitigation fee as follows: 56. A current traffic mitigation fee ($4,246.00 dollars) shall be paid for each A.M. and P.M. peak hour trip generated by the proposed recreational facility development project. Fees shall be paid at time of issuance of building permits for the development project. The total fee determined for this project is $1,137,928, (which shall be subject to adjustment according to the Lee Saylor Construction Index to take into account changes in construction costs); based on a fee of $4,246.00 times 268 total P.M. peak hour trips identified for construction of the 85,700 square foot multi -use recreational facility building and outdoor soccer field. The fee may be paid prior to issuance of permit(s) for the tenant improvements required to occupy the building, subject to separate written agreement by the Director of Public Works. E. The City understands that the intention of San Rafael Airport, LLC, was to lease the entire Facility to an on-site sports management company that would occupy and operate the Facility. The Covid-19 virus has made indoor sports difficult to accommodate and San Rafael Airport, LLC has found leasing the Facility to an independent operator difficult. San Rafael Airport, LLC has determined that the best way to find tenants for the Facility is to lease portions of the property to independent smaller operators and has, as of the date of execution of this Agreement, secured an initial tenant to lease approximately 21 percent of the total square footage of the Facility. F. The City has determined that the permittee's request for a deferral of traffic impact fees achieves the goals and objectives of the City's land use planning policies and will provide appropriate assurances to Developer regarding its ability to complete certain portions of the project including improvements to the Facility while not burdening the development with the remainder of the Traffic Impact Fees until such time as tenants are identified to lease the remainder of the facility. It is agreed that as tenants are identified and sign lease agreements the balance of Trak Impact Fees will be paid to the City on a pro -rata basis based on the percentage of the Facility leased -by new tenants until the entire Facility is leased and the total Traffic Impact fees in the amount of $1,137,928, is paid in full. This will in turn eliminate uncertainty in planning for and secure orderly development of the New Projects, assure progressive installation of necessary improvements and provision for public services appropriate to each stage of development of the New Projects, and otherwise achieve the goals of the City. G. The City wishes to enter into this Agreement with Developer because the public benefits of the Recreational Facility enhances the sport facility options within the area, where developing new public facilities may be a challenge both environmentally and financially. H. City and Developer desire to enter into this Agreement to secure the intended use and incentivize completion of the Facility and leasing to tenants within a reasonable timeframe. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Recitals. The above recitals are true and correct and are fully incorporated into this Agreement by reference and made a part hereof. 2. Effective Date. This Agreement shall become effective the Effective Date set forth above. 3. Deferred Fees. City agrees to defer collection of the payment of the balance of the Traffic Impact Fees (the "Deferred Fees") identified in Exhibit B, attached hereto and incorporated herein by this reference in accordance with the fee schedule and terms for payment set forth in Exhibit B, provided that in all events the Deferred Fees shall be payable by the date that is no later than three (3) years from the Effective Date of this Agreement. Any certificate of occupancy or temporary certificate of occupancy issued, and any final inspection conducted, before the Developer has paid the applicable portion of the Deferred Fees for a particular Demised Premises (as defined in Exhibit B) for which such portion of the Deferred Fees is payable in accordance with this Agreement is void ab initio. 4. Late Payment. If, for any reason, the Developer has not paid the Deferred Fees within the timeframe set forth in section 3 above, the City may serve the Developer with a written demand for payment as provided for in section 7. Within five business days of the effective date of this notice, the Developer shall pay the Deferred Fees, plus a late fee equal to 10% of the amount to be paid. If the Developer fails to pay the Deferred Fees when due, the City may pursue any remedies available at law or in equity. 5. Collection Expenses. If the Developer does not pay the Deferred Fees when due, the Developer shall also pay all expenses the City incurs to collect the Deferred Fees, including but not limited to City staff time, third party costs, and reasonable attorneys' fees and litigation costs, whether incurred for the City's staff attorneys or outside attorneys. 6. Recording. This Agreement shall be recorded against the Property in the Office of the Marin County Recorder and shall constitute a lien for the payment of the Fees, binding upon and running with the Property. If Developer sells all or any portion of the Property, the Property shall not be released of any obligations under this Agreement relating to the Property or portion of the Property which is being acquired. This Agreement shall be binding upon, and the benefits of this Agreement shall inure, to the Parties and all successors in interest to the Parties. The burden of this Agreement shall be released from title to the Property upon full payment of the Fees identified in Exhibit B. Within a reasonable time following payment of the Fees, the City shall execute a release of lien releasing the burden of this Agreement from title to the Property. 7. Notices. Any notice or other communication under this Agreement must be in writing and will be considered properly given and effective only when mailed or delivered in the manner provided by this section 7 to the persons identified below. A notice or other communication that is mailed will be effective or will be considered to have been given on the third day after it is deposited in the U.S. Mail (certified mail and return receipt requested), addressed as set forth below, with postage prepaid. A notice or other communication sent in any other manner will be effective or will be considered properly given when actually delivered. A parry may change its address for these purposes by giving written notice of the change to the other party in the manner provided in this section 7. To City: City of San Rafael 1400 Fifth Avenue San Rafael, California 94901 Attn: City Manager Phone: (415) 485-3070 Fax: (415) 459-2242 With copy to: City Attorney's Office To Developer: San Rafael Airport LLC 400 F Smith Ranch Rd San Rafael, CA 94903 Attn.: Robert Herbst Phone: (415) 472-7700 Fax: (415) 507-0299 8. Authority. Each person signing this agreement hereby represents and warrants that he or she is fully authorized to sign this agreement on behalf of his or her party and to bind that parry to the performance of its obligations under this agreement. 9. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement. [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth above. APPROVED AS TO FORM: By: Y,4� Q tata-1, # bW ,City Attorney CITY OF SAN RAFAEL By: Ji ch , City NXag r ATTEST By: .0 • /�/•�(ifiL f' Name: Lindsay I ara r City Clerk SAN RAFAEL AIRPORT, LLC, Name: Joe ShAM M' ACKNOWLEDGMENT BY NOTARY PUBLIC A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF ) ss.. COUNTY OF ) On 1AIVS4111tote ,before me, _Li tr a JQi VQs Crejeenc�o , NOTARY PUBLIC, personally appeared Joe �Shekov , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. r LILIA WAS CRESCENCIO -� ' COMM. # 2286729 WITNESS my hand and official seal. NOTARYPUBLIC-CALIFORNIA FMARIN COUNTY cep ' My Comm ExFirn APRIL 27, 2023 J Signature (Seal) My Commission Expires 4612Z,743 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Marin On},1A gyp,, �{j�p before me, Brenna Kathleen Nurmi, Notary Public (insert name and title of the officer) personally appeared IIA40elf who proved to me on the basis of satisfactory evidence to be therson m whose nae i e bscribed to the within instrument and acknowledged to me tha=' /tF 6 executed the same in hi /h)af/th/r authorized capacity(), and that b�ohO/the(r signatureXon the instrument the personx, or the entity upon behalf of which the person;4 acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Y . BRENNA KATHLEEN HU" �= Notary Public • California Marin County F Signature Commission p 2297544 (Seal) ) My Comm, Expires Jul 18, 2023 + ACKNOWLEDGMENT BY NOTARY PUBLIC A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF ) ss.. COUNTY OF ) On , before me, , NOTARY PUBLIC, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) My Commission Expires ACKNOWLEDGMENT BY NOTARY PUBLIC A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF ) ss.. COUNTY OF ) On , before me, , NOTARY PUBLIC, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) My Commission Expires Exhibit A Property Description Marin County Assessor Parcel Numbers 155-230-10, -11, -12, -13, -14, -15, and -16. That certain real property situate in the City of San Rafael, County of Marin, State of California, described and shown as Parcel B on that certain map entitled "Record of Survey Lands of San Rafael Airport" recorded in Book 2008 of Maps, Page 144, Marin County Records. Exhibit B Deferred Fees Total Traffic Impact Fees $1,137,928.00 Traffic Impact Fee due to City prior to execution of this Agreement $238,965.00* Deferred Fees $898,963.00 *This amount reflects 21 % of the Total Trak Impact Fees, which 21 % represents that portion of the square footage of the Facility for which Developer has secured a tenant lease, as of the date of execution of this Agreement.) Timing of Payment of Deferred Fees: Concurrent with the issuance by the City of a building permit with respect to any alterations, additions, or improvements to be performed by or on behalf of a tenant or licensee with respect to any demised space within the Facilities which is leased by Developer (each, a "Demised Premises"), Developer shall pay to the City a pro rata percentage of the Deferred Fee which pro rata percentage shall be based upon the ratio of the square footage of the applicable Demised Premises leased by Developer for which such building permit is issued to the total square footage of the Facility. For purposes of this Exhibit and this Agreement, "demised space" means any portion or area of the Facilities that is leased by Developer to a tenant or licensee and for which a certificate of occupancy has not be issued. As set forth in section 3 of this Agreement, Developer shall pay the Deferred Fees by no later than three (3) years from the Effective Date of this Agreement. �P,' RAP, �! 1 s i Co /Tr�'�/ITH P�� CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: TS for Bill Guerin Extension: 3354 Contractor Name: San Rafael Airport Contractor's Contact: Robert Herbst Contact's Email: (415) 472-7700 ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to ❑ enter a date. b. Email contract (in Word) and attachments to City Click here to Attorney c/o Laraine.Gittens@cityofsanrafael.org enter a date. ❑ 2 City Attorney a. Review, revise, and comment on draft agreement 8/13/2020 and return to Project Manager Click here to © ND b. Confirm insurance requirements, create Job on enter a date. PINS, send PINS insurance notice to contractor ❑x LG (N/A) 3 Department Director Approval of final agreement form to send to 8/13/2020 ❑x BG contractor Forward three (3) originals of final agreement to Click here to ❑ 4 Project Manager contractor for their signature When necessary, contractor -signed agreement enter a date. ❑ N/A 5 Project Manager agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 8/13/20 TS Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed % agreement�4/ 8 City Attorney Review and approve insurance in PINS, and bondsIZ�Z[� for Public Works Contracts JJ 9 City Manager/ Mayor Agreement executed by City Council authorized q ,L J LU K official Attest signatures, retains original agreement andj1 a 6 1 B114-01-10 10 City Clerk forwards copies to Project Manager o ZL